On December 14, 2017, in
Schoeff v. R.J. Reynolds Tobacco Company, No. SC15-2233, the Florida Supreme Court resolved a circuit conflict
between the First and Fourth DCAs, ruling that Florida’s comparative
fault statute, Section 768.81, does not apply to Engle progeny tobacco
cases involving intentional torts. The Florida Supreme Court quashed the
Fourth DCA’s decision in
R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015), and approved the First District’s
decision in
R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013), to the extent that it did not reduce
compensatory damages under the comparative fault statute. In so finding,
the Florida Supreme Court concluded that the 2011 version of the comparative
negligence statute applied to the
Engleprogeny cases because the Florida legislature expressly made the statute
retroactive, and that version of the statute expressly exempts actions
based on an intentional tort. The Court concluded that if the comparative
fault statute is applied to an
Engle progeny case in which the jury finds for the plaintiff on both negligence
and intentional tort claims, any reduction is necessarily applied to damages
from “action[s] based upon an intentional tort” in derogation
of the intentional tort exception.

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